Citation Nr: 0115889
Decision Date: 06/11/01 Archive Date: 06/18/01
DOCKET NO. 98-12 171 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York
THE ISSUES
1. Entitlement to service connection for traumatic arthritis
of the right ankle.
2. Entitlement to service connection for traumatic arthritis
of the cervical spine.
3. Entitlement to service connection for traumatic arthritis
of the thoracic spine.
4. Entitlement to service connection for traumatic arthritis
of the lumbosacral spine.
5. Entitlement to an increased evaluation for residuals of a
right knee injury with total knee replacement, currently
rated as 50 percent disabling.
6. Entitlement to an initial evaluation in excess of 10
percent for myositis ossificans of the right hip.
7. Entitlement to an initial evaluation in excess of 10
percent for arthralgia of the right ankle.
8. Entitlement to an increased evaluation for diabetes
mellitus, currently rated as 10 percent disabling.
9. Entitlement to an initial compensable rating for
arthralgia of the lumbosacral spine.
10. Entitlement to a total rating for compensation purposes
based on individual unemployability due to service-connected
disability (TDIU).
11. Entitlement to financial assistance in the purchase of
an automobile or other conveyance and necessary adaptive
equipment.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from February 1970 to February
1971.
This appeal comes to the Board of Veterans' Appeals (Board)
from decisions of the Buffalo, New York, VA RO.
REMAND
During the pendency of this appeal, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (Nov. 9, 2000) (to be codified at 38 U.S.C.A. §§ 5100,
5103A, and 5126, and to be codified as amended at 5102, 5103,
5106 and 5107) was signed into law. This legislation is
applicable to the veteran's claim. In essence, the VCAA
eliminated the concept of a well-grounded claim and redefined
VA's duty to assist a veteran in the development of a claim.
It also includes new notification provisions. Specifically,
it requires VA to notify the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the Secretary
that is necessary to substantiate the claim. As part of the
notice, VA is to specifically inform the claimant of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
First, relevant to the veteran's service connection claims,
the Board notes that the RO denied entitlement to service
connection for traumatic arthritis of the right ankle,
cervical spine, thoracic spine, and lumbosacral spine as not
well grounded. The veteran claims such stem from in-service
injuries. The current record contains no medical opinion
pertinent to the existence and etiology of the veteran's
claimed traumatic arthritis; thus, remand to obtain such
opinions is necessary prior to Board adjudication on the
merits. See VCAA, Pub. L. No. 106-475, § 3(s), 114 Stat.
2096, 2097-98 (2000) (to be codified as amended at
38 U.S.C. § 5103A).
The Board next notes that by decision dated in August 1999
the RO established service connection for arthralgia of the
right ankle and assigned an initial 10 percent evaluation
effective from March 1997; and, established service
connection for arthralgia of the lumbosacral spine and
assigned a zero percent evaluation effective from March 1997.
In September 1999 the RO received the veteran's notice of
disagreement with those initial rating assignments. In
October 1999 the RO issued a statement of the case pertinent
to the evaluation of arthralgia of the right ankle and
lumbosacral spine. The RO included recitation of relevant
diagnostic criteria. The veteran continued those appeals via
statements received in February and March 2000.
The veteran is also pursuing claims of entitlement to higher
evaluations based on myositis ossificans of the right hip,
disability of the right knee and diabetes mellitus. Finally,
she is pursuing claims of entitlement to TDIU benefits and
financial assistance in the purchase of an automobile or
other conveyance and/or necessary adaptive equipment. She
claims her service-connected disability/ies result in loss of
use or ankylosis of her knees/hips and also that her service-
connected disabilities render her unemployable.
The Board notes that the veteran was last examined by VA in
November 1997 and has alleged an increase in her disabilities
since that time. See Caffrey v. Brown, 6 Vet. App. 377
(1994) (Two years old was too remote); cf. Glover v. West,
185 F.3d 1328 (Fed. Cir. 1999) (No examination required in
absence of evidence showing some increase in disability).
The November 1997 VA examination does not address the matter
of functional loss due to pain on use or flare-ups of the
veteran's service-connected disabilities of various joints.
See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown,
8 Vet. App. 202 (1995). The record also lacks medical
evidence addressing the veteran's contentions that her
service-connected disabilities result in ankylosis or loss of
use so as to qualify her for assistance in obtaining an
adapted automobile or relevant equipment. Nor does the
record contain a medical opinion as to the impact of the
veteran's service-connected disabilities on her
employability. The Court has held that in the case of a
claim for total rating based on individual unemployability,
the duty to assist requires that VA obtain an examination
which includes an opinion on what effect the veteran's
service-connected disability has on his ability to work.
38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297
(1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2000).
Thus, additional examination is indicated.
Here the Board additionally notes that in a statement
received in September 1998, the veteran claimed entitlement
to additional disabilities, to include based on impaired
vision, entitlement to special monthly compensation based on
loss of use of her right leg and foot, and entitlement to an
extraschedular evaluation for her right lower extremity. It
does not appear the RO adjudicated the matters of entitlement
to special monthly compensation or service connection for
vision impairment. Such matters must be adjudicated. She
also raised the matter of entitlement to service connection
for a psychiatric disorder, previously denied, and
entitlement to service connection for sciatica. Such service
connection matters are inextricably intertwined with the TDIU
matter in appellate status. See Myers v. Derwinski, 1 Vet.
App. 127 (1991); Harris v. Derwinski, 1 Vet. App. 181, 183
(1991).
The record also reflects that the veteran has undergone
additional right knee surgery, records of which are
associated with the claims file. Such evidence has not been
considered in the evaluation of the veteran's claim for TDIU
benefits. Due process requires that the RO consider all
records and provide the veteran with a related supplemental
statement of the case. 38 C.F.R. § 20.1304(c) (2000).
In light of the existing medical records and allegations of
the veteran and her representative, VA has the duty to assist
her in the development of her claims by obtaining ongoing
treatment reports of her treatment for the issues being
considered in this appeal. She should also undergo a
thorough and contemporaneous VA compensation examination that
takes into account her prior medical evaluations and
treatment. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat.
2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A).
Also, remand is ordered so as to ensure compliance with the
assistance and notification provisions of the VCAA.
In view of the above, the case is remanded to the RO for the
following actions:
1. The RO should ask the veteran to
prepare a detailed list of all sources
(VA and non-VA) of evaluation for the
disabilities discussed above. Names and
addresses of the medical providers, and
dates of evaluations and treatment,
should be listed. After obtaining any
needed release forms from the veteran,
the RO should directly contact the
medical providers and obtain copies of
the records not already in the file. In
any case, the RO should ensure all
pertinent VA treatment or hospitalization
records are associated with the claims
file.
2. If the RO is unsuccessful in
obtaining copies of any records
identified by the veteran, it should so
inform the veteran and her representative
and request them to provide copies of
such records.
3. The veteran should be scheduled for a
VA compensation examinations by the
appropriate physicians to determine the
extent, etiology and/or severity of
claimed disabilities. The claims folder
and a copy of this remand must be made
available to the physician(s) and
reviewed prior to the examination. All
indicated tests and studies should be
conducted.
The examiner(s) should identify the
nature of existing visual disability and
psychiatric disability, providing an
opinion as to whether such are as likely
as not related to service, or, to
service-connected disability. The
examiner(s) should identify the nature
and severity of manifestations associated
with such disabilities.
The examiner(s) should confirm or refute
whether the veteran has arthritis of the
right ankle, cervical spine, thoracic
spine and/or lumbosacral spine, and
whether she had sciatica of the lumbar
spine. If such disabilities are
identified the examiner(s) should provide
an opinion as to whether each is as
likely not related to service, or, to
service-connected disability. The
examiner(s) should identify the nature
and severity of manifestations associated
with such disabilities.
The examiner(s) should identify the
nature and severity of manifestations
associated with diabetes mellitus,
stating whether such requires the use of
insulin, a restricted diet, and/or oral
hypoglycemic agents for control, and
identifying whether there are episodes of
ketoacidosis or hypoglycemic reactions,
or any health complications from diabetes
mellitus. The examiner(s) should comment
on the restrictions, if any, on daily
activities and/or the veteran's
employability due to diabetes mellitus.
The examiner(s) should identify the
nature and severity of manifestations of
a total right knee replacement, myositis
ossificans of the right hip, arthralgia
of the right ankle and arthralgia of the
lumbosacral spine. The examiner(s)
should express an opinion as to whether
or not there is severe painful motion or
weakness attributable to such, to include
whether resulting pain or weakness
significantly limits the veteran's
functional ability during flare-ups or
when the affected joints are used
repeatedly over a period of time. The
examiner(s) should also be asked to
determine whether the joints exhibit
weakened movement, excess fatigability or
incoordination; if feasible, these
determinations should be expressed in
terms of additional motion lost due to
any weakened movement, excess
fatigability or incoordination.
The examiner(s) should specifically
identify whether the veteran has
ankylosis of her knees or hips due to her
service-connected disabilities, and/or
whether she has lost the use of either
lower extremity such that she would be
equally well-served with amputation at
the joint and use of a prosthetic device.
The examiner(s) should include comment on
the impact of the veteran's lower
extremity disabilities on her balance and
propulsion.
The examiner(s) should also offer an
opinion on what effect the veteran's
service-connected disabilities have on
her ability to work.
The rationale for all opinions expressed
should be provided.
5. The RO should then ensure that the
above development has been completed and
should undertake any other actions it
deems to be required to comply with the
notice and duty to assist provisions of
the VCAA.
6. The RO should adjudicate the matters
of entitlement to service connection for
psychiatric disability, sciatica and
visual impairment, consistent with the
procedural history of this case and
governing laws and regulations. The RO
should also adjudicate the matter of
entitlement to special monthly
compensation. Then, the RO should re-
adjudicate the issues of entitlement to
service connection for traumatic
arthritis of the right ankle, cervical
spine, thoracic spine and lumbosacral
spine; the issues of entitlement to
higher ratings for residuals of a right
knee injury with total knee replacement,
myositis ossificans of the right hip,
arthralgia of the right ankle, and
arthralgia of the lumbosacral spine, with
consideration of 38 C.F.R. § 3.321(b)(1)
(2000); and, the issues of entitlement to
a higher rating for diabetes mellitus,
entitlement to TDIU benefits, and
entitlement to financial assistance in
the purchase of an automobile or other
conveyance and necessary adaptive
equipment.
If a decision adverse to the veteran
results, she and her representative
should be furnished a supplemental
statement of the case, which contains
reference to all potentially relevant
laws and regulations, recitation of the
evidence considered, and the reasons and
bases for the denial. They should be
given an appropriate opportunity to
respond thereto.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. M. Daley
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).